Mamma Mia! Italian Ruling on Piracy Puts Websites on Notice

Italy is rightly famous for many things — great food, glorious history, boring soccer — but in the past few years, it has also developed a reputation for antagonizing the world’s biggest Internet companies. Legal actions targeted at the likes of Google and Facebook have created a fractious relationship between the government and leading technology brands.

In a case heard by Rome’s ninth circuit, the makers of the award-winning Iranian film drama About Elly sued Yahoo. The movie’s Italian distributor, PFA, claimed pirated clips and links to illegal film downloads were appearing in Yahoo Video searches and demanded the company remove the videos from the search results. When Yahoo didn’t respond, the case was taken up by Open Gate, a regulatory lobby group run by Tullio Camiglieri, a former journalist and executive in Rupert Murdoch’s Sky Italia.

According to this report in la Repubblica, one of Italy’s leading newspapers, the complaint centered on the argument that PFA’s right to profit from About Elly was undermined, since Yahoo search results were prioritizing bootlegs over the legitimate version of the film. “The film’s official website was not even in the top positions,” argued attorneys, who also pointed out, “it was ranked lower than links to pages that allowed users to illegally download the movie.”

The judge agreed with PFA, and, in his ruling, ordered Yahoo to do more to “inhibit” copyright infringement. If his ruling holds, it could put search engines on notice that they are responsible for links to illegal downloads.

It’s a move that not only holds Yahoo liable, but could spark further action. Camiglieri, the president of Open Gate, said this “opened the way” for his company to lead action against Google and YouTube in Italy over similar claims. (Whether it will work is unclear; Google already uses digital fingerprinting techniques to filter out some pirated material, even though a U.S. court ruled in its favor after a $1 billion lawsuit by Viacom, brought amid similar claims).

It’s far from the first time the Italian courts have taken a search service to task for what it sees as an invasion of rights. Google has been involved in a number of lawsuits there — most notably when three executives were found guilty of violating privacy laws after YouTube failed to prevent a gang of teenage bullies from uploading a video. Meanwhile, the Pirate Bay has been locked in a long-running dispute over its legality, and is subject to an on-again, off-again, on-again block on its service. These cases are all different, but the search engines have countered in similar ways: that they can’t be held responsible for monitoring the legality of search results and that doing so would be prohibitively expensive.

It’s worth pointing out the ruling in this case doesn’t force Yahoo, or other search services, to police material themselves. In fact, the court specifically recognized that content policing of this sort would be impossible. Where Yahoo went wrong, according to the Italian court, was in failing to act on the alleged infringement after it was notified of it. The court ruling, then, requires Yahoo to act once it’s given evidence of infringement, regardless of whether actual infringement has occurred.

This is a particularly important decision since, right now, Italy is undertaking a a public consultation to decide whether it needs an equivalent to the U.S.’s notorious Digital Millennium Copyright Act. There’s currently nothing of the sort in Italy, aside from isolated cases, but judgments such as this might make such a system more likely.